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ALDO SCHIAVONE . The Invention of Law in the West 

Aldo Schiavone . The Invention of Law in the West. Translated by Jeremy Carden  and Antony 
Shugaar . Cambridge, Mass.:  Belknap Press of Harvard University Press.  2012. Pp. viii, 624. $49.95.
Dennis Kehoe

The American Historical Review, Volume 118, Issue 1, 1 February 2013, Pages 140–142,
https://doi.org/10.1093/ahr/118.1.140
Published: 04 February 2013

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In this monumental book, a translation of Ius: L'invenzione del diritto in Occidente (2005),
Aldo Schiavone traces the history of Roman jurisprudence from the beginnings of Rome
until the late classical period of Roman law in the third century C.E . Drawing on his
considerable knowledge of Roman history, culture, and law, Schiavone focuses on
arguably the greatest intellectual achievement of Roman society, the creation of a
system of law, ius, that ordered society but remained under the direction of experts
generally immune from immediate political considerations. Roman law was, in
Schiavone's characterization, “an ineradicable singularity,” a secularized system of law
not immediately subject to politics and legislation, as in Greece, but one guided by elite
experts with exclusive technical knowledge (p. 57). Such an orientation of law had
profound implications for the legal history of the West.

The chief protagonists in Schiavone's story are the classical jurists, originally
aristocrats learned in the law, who dispensed legal advice on an informal basis. The core
of the book traces this struggle from the earliest of the classical jurists, Q. Mucius
Scaevola (ca. 140 to 92 B.C.E. ), whose treatise on the civil law, or ius civile, would
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in韷�uence how subsequent jurists would classify and analyze the law. The story ends
with the late classical jurist Ulpian, who, like other jurists in the Severan period (193–

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235 C.E. ), served in important posts in an imperial administration that was concerned
with applying the law as uniformly as possible in an increasingly centralized empire.

Schiavone sees an unbroken connection between the classical Roman jurists and the
pontizs (ponti韷�ces) of the monarchical and the early republican periods in Roman
history (down to the 韷�fth century B.C.E. ). The pontizs, who interpreted the will of the
gods, gave to fellow members of the ruling aristocracy “oracular responses” on the
correct rituals connected with the legal relationships by which society was ordered.
These included de韷�ning private property and the ways in which it could be alienated, the
transfer of property between generations, and the personal status of individuals within
a hierarchical family structure. The control by aristocratic wise men over law survived
the challenge posed by the publication of the Twelve Tables in the mid 韷�fth century
B.C.E . Unlike many cities in the Greek world at this time, Rome did not experience a

democratic revolution, and the authority to interpret the law remained with members of
the aristocracy, 韷�rst the pontizs, and then, as Rome changed into an Italian and then a
Mediterranean power in the fourth and third centuries B.C.E. , the praetors, magistrates
who were responsible for the administration of law. This “elite of experts selected by an
ancient tradition” imposed an order on society, one that retained a high degree of
formalism and so was not controlled by democratic legislation (p. 285). The Roman legal
authorities, including the republican praetors and the jurists, evolved in their
conception of the law, moving beyond a purely formal application of what were
originally ritualistic procedures, freeing the law to some extent from this pure
formalism as a way of regulating private relationships among people. In their
understanding of the law, the jurists wrestled with balancing respect for their tradition
against the need to modify the law to accommodate an evolving understanding of
fairness. At all times, the Roman jurists asserted the autonomy of their authority as
learned experts capable of formulating rules to regulate society by looking to the past
and stressing their connection to this ancient tradition.

The problem of maintaining the intellectual independence of the jurists was keenly felt
under the principate, as Roman emperors came to play an increasing role in the creation
of law and in the administration of justice. Schiavone illustrates this tension with two
jurists, both of whom shared in the same intellectual tradition, but whose careers could
hardly have been more dizerent: Labeo, the great jurist under Augustus and Tiberius at
the beginning of the principate, and Ulpian, one of the most important 韷�gures of the
Severan age. As an opponent of the principate, Labeo sought to preserve Roman
jurisprudence as independent of the princeps, and his respect for the antiquity of the law
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and the profession of jurisprudence took on an ideological character (chapter
seventeen). At the end of the classical period, by contrast, Ulpian, who held important

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administrative posts under several emperors, sought to reconcile the work of the jurists
with the reality that the emperor played a decisive role in creating the law (chapter
twenty-one). Between Labeo and Ulpian, the profession of jurisprudence underwent
profound changes. The position of the jurist became a semi-o韛�cial one, as emperors,
beginning with Augustus, granted them the ius respondendi, or the right to issue
responses to legal questions that would be binding for courts. In the second century, the
emperors became directly involved in the creation and administration of the law.
Emperors played an increasing role in responding to legal questions from citizens
around the empire and in hearing cases on appeal, and their responses, or constitutions,
created law. At the same time, the emperors sought to maintain authoritative legal
institutions that would facilitate the administration of justice. Thus at the Emperor
Hadrian's instruction, the jurist Julian redacted the praetor's edict. By the end of the
Roman Republic, the praetor's edict had become a body of law, ius honorarium, based on
new legal remedies introduced by the praetors, that substantially modi韷�ed the ius civile,
the product ultimately of the Twelve Tables as well as subsequent legislation. The
emperor now loomed over the interpretation and administration of this law. Even so, in
the early third century, Ulpian very much saw himself as operating in a long tradition of
juristic independence going back to Q. Mucius Scaevola. The dizerence now was that the
late classical jurists “were making their own technique the principal instrument of
administration, inventing a form of State, and becoming protagonists of a world power”
(p. 427). Ulpian and other late classical jurists recognized that their work had evolved
from that of their predecessors, since they were intimately involved in the work of the
Roman government in administering justice. Even so, in Ulpian's view, their work was
characterized by a search for justice, and in this ezort, he saw the jurists as true
philosophers (pp. 423–428).

The intellectual principles on the basis of which the jurists developed their
understanding of the law are quite complex, as Schiavone discusses in nine core
chapters. Although profoundly in韷�uenced by the intellectual climate of the Greek world,
especially Aristotelian and Hellenistic philosophy, the Roman jurists nevertheless
created an intellectual 韷�eld unique to itself and quite independent of Hellenistic models.
The jurists tended to avoid grand theoretical analyses of the law, but instead they
developed an abstract, casuistic method, informed, however, by broader principles
based on a changing understanding of equity. The Rhetorica ad Herennium, an early
韷�rst-century B.C.E. rhetorical treatise, expressed a principle that Schiavone sees as
underlying this ezort: “Justice is the equity that gives to each his own right, for the
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dignity Content
of all” (p. 299). Schiavone illustrates how the jurists' understanding of equity
in韷�uenced their interpretation of the law by focusing on their varying understanding of
the principles underlying contracts. The central issue was their willingness to modify
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formal categories to create a more general theory of contracts that would accommodate
all types of lawful agreements freely entered into by individuals. To take a speci韷�c
example, in the law of partnership, or societas, Q. Mucius Scaevola sought to link this
form of contract with an ancient institution, consortium, in which heirs would continue
to hold and operate their property in common (pp. 216–220). In Scaevola's
understanding of a societas, each party had to provide property and shared
proportionally in all pro韷�ts and losses. In the next generation, by contrast, Servius
Sulpicius Rufus was willing to accommodate within the law of partnership more
complex relationships arising from the commercial world. For example, he recognized
as a partnership a relationship in which one party contributed only skills or services, not
property, and was indemni韷�ed against any losses (Gaius, Inst. 3.149–50, p. 219).

The signi韷�cant accomplishments of the classical jurists lead us to wonder whether they
were successful at adapting the law to meet social needs, or even to change society. In
approaching this question, Schiavone focuses on the complex interplay of law, social
values, and the economy, and his ultimate verdict seems to be pessimistic. To be sure,
innovations in the law of contracts and obligations facilitated the complex commercial
relationships. At the same time, there was a limit to how far such legal innovation could
go, as the Roman economy, and Roman law, remained dominated by the institution of
slavery. Roman law never developed institutional arrangements oriented around
production and the use of wage labor, which would seem to be essential for the economy
to escape the constraints of one dominated by agriculture (pp. 362–365). Instead, the
law concerned itself with the ownership of property and personal status. Thus a central
issue in Roman commercial law revolved around the degree to which slaves (and other
legal dependents) serving as business agents created liability for their masters.
Schiavone may overstate the degree to which agricultural production in late republican
and early imperial Italy revolved around slave labor (on this, see Alessandro Launaro,
Peasants and Slaves: The Rural Population of Roman Italy (200 B.C. to A.D. 100) [2011]), and
the common assumption that slaves comprised about one-third of late republican
Italy's population is likely to be an exaggeration (see Walter Scheidel, “Human Mobility
in Roman Italy, II: The Slave Population,” Journal of Roman Studies 95 [2005]: 64–79).
Still, the institution of slavery pervaded all aspects of Roman society, including the law.
Indeed, one of the intellectual failures of Roman law, as Schiavone discusses in the 韷�nal
chapter, was that jurists never applied their understanding of natural law to develop a
philosophical conception of individualism and human rights that would call into
question the institution of slavery.
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Schiavone seems unduly pessimistic in his judgment of the contribution that the jurists
made to the governing of the empire. For Schiavone, the Roman Empire was in a long-

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term state of crisis, stemming from the gradual systematic collapse of its slave system
and, perhaps more important, the need, beginning in the second century C.E. , to create
an increasingly centralized and bureaucratized administration in an empire whose
economic resources were not expanding. The considerable power that the emperor
wielded in the second and third centuries C.E. as legislator and judge seemingly
diminished the independence of juristic thought, but at the same time the great late-
classical jurists held positions of high responsibility in the imperial government and so
were in a position to in韷�uence the administration of justice for the empire to a degree
unthinkable for jurists of an earlier age. Schiavone sees the role of the emperor in
responding to petitions on legal matters (in fact, the most important jurists of the
Severan age, including Ulpian, headed the o韛�ce that responded to these petitions) as
fundamentally altering the role of the jurists. It also seems to be the case, however, that
this role of the emperor, as emphasized in several recent works, such as Serena
Connolly's study of petitions under the Emperor Diocletian (Lives behind the Laws: The
World of the Codex Hermogenianus [2010]), brought access to authoritative legal
institutions to a vast class of people across the Roman Empire. The strength of the
empire's legal institutions, ultimately resting on centuries-long work in Roman
jurisprudence, was crucial in enabling the empire to survive its crises. If the jurists lost
some of their independence in this process, they were the victims of their own
enormous accomplishments.

With such a rich and challenging book, it is di韛�cult for a reviewer to do justice to the
author's learning. In The Invention of Law in the West, Schiavone not only traces the
development of a lasting intellectual tradition but shows how central Roman law is to
understanding Roman history from its foundation through the high empire.

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